Self Defense, From Your Attorney's Point Of View...

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alsaqr said:
i've been involved in two home invasion shootings in two different states. Perps died in both cases. In the first case the prosecutor declined to take the case to a grand jury. In the second case the prosecutor took the case to the grand jury without charges: i was no billed.

There are cases where an overzealous prosecutor charged the shooter in a good self defense case. Such cases are very rare.
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I see you are from Oklahoma. That's a good place to be if you make a good SD shoot. MOST places in CA are good too, believe it or not, but the big cities are a different pot of stew. I'd not want to get charged in an SD shooting in Berkeley.
 
AlexM said:
In Texas, for example, if there is someone on your property that is uninvited and pose a threat you're in your right to open fire.
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Just to clarify, Texas law requires that there be forcible and unlawful entry into your dwelling or vehicle and you must know that there was a forcible and unlawful entry in order to rely on the presumtpion that the use of lethal force was reasonable (Castle Doctrine). Someone entering onto your property uninvited, even if they pose a threat, may still not be enough to justify lethal force under Texas law depending on the scenario.

And as fiddletown already mentioned, any homicide in Texas is going to go to the grand jury, regardless of how good it looks.

alasqr said:
IMO: The prosecutor rightly decided that the OK "stand your ground" law did not apply to Abshire. Yes, Abshire was acquitted. Abshire's bad decisions also trashed his life.
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The prosecutors in Rogers County made two arguments. One was that Abshire could not use the "Stand Your Ground" defense because he escalated/provoked the situation. The second was that even if Abshire was justified in firing the first shot, the second shot, which struck Case in the back (fired as Case was crawling away or immediately after the first shot as Case was still on top of Abshire depending on which witnesses you chose to believe), was not justified self-defense.

For what it is worth, Abshire has sued Rogers County over the arrest. The county has already paid out $10,000 to the insurance company just to deal with the initial claim and may pay out more still before it is all over.

Its absurd to assume that elected prosecutors in my pro-gun state are going prosecute armed self defense cases with the same zeal as prosecutors in some "experts" anti-gun state with its appointed prosecutors.
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Abshire was attacked by six grown men on his own lawn. He was tackled to the ground, had his front teeth cracked. He had one man choking him in a roadside ditch while another man kicked him. This is the point at which he opened fire and this was pretty well established in the initial testimony to police. In fact Case on top of Abshire in the ditch when the shots were fired is one of the few things both sides agreed on.

Here is how the Rogers County (Oklahoma) Assistant District Attorney characterized that according to local news:

"The Assistant District Attorney says that a shouting match in a driveway is not enough of a defense to feel that life and property are being threatened, especially when you're the one that's armed."

I'm seeing a big disconnect between the way the Rogers Country ADA views that case and the testimony given in the Abshire trial. That kind of disconnect can definitely be a problem in a self-defense shooting. A rare problem thankfully; but a problem none the less.

I'd also note one other thing all of the cases fiddletown listed have in common: The victim had a gun and the attacker(s) did not. Like it or not, many people still take the view that a grown adult male smashing your noggin into the sidewalk is just boys being boys and that pulling out a gun to prevent that is poor sportsmanship. These cases are almost always tricky (note that 3 of the 5 cases fiddletown gives happen around or in the person's home in states with good gun laws).

One big problem with self-defense shoots is that every single criminal who shoots someone also claims self-defense. Just imagine being in a job where you get told 1,000 times a year that it was "self-defense" and 999 of those times you are being lied to. When you do finally get an honest "it was self-defense", you can be a bit jaded unless the facts are clear.
 
alsaqr said:
...Its absurd to assume that elected prosecutors in my pro-gun state are going prosecute armed self defense cases with the same zeal as prosecutors in some "experts" anti-gun state...
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You're still missing the point.

If the DA is prosecuting the case, he doesn't think it's a self defense case. Just because the defendant says he was defending himself doesn't make it so. The DA would only be prosecuting the case if he thought that the evidence was such that he would be able to overcome the defendant's plea of self defense.

Buck Snort said:
Let's not forget that business about being innocent until proven guilty in front of a jury of your peers.
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I never really understood where people get this "jury of your peers" business. It's simply not true.

One is entitled to an impartial jury (Constitution, Sixth Amendment). But there is nothing in the law of the United States that entitles you to a jury of his peers, i. e., people of the same societal group, age, status, background or education, etc., as you.

(The notion of a "jury of one's peers" comes from Magna Carta and was indeed intended to refer to being judged by one's equals. Magna Carta was forced on King John by the feudal barons to protect their interests. Their first concern was that they be judged only by nobles of similar rank. And indeed until relatively recently, a British noble charged with a crime was entitled to be tried in the House of Lords. The last trial in the House of Lords was in 1935, and the trial jurisdiction of the House of Lords was abolished in 1948. But it really doesn't mean anything in the United States.)

[2] As far as the presumption of innocence goes, that pretty much goes out the window when you plead self defense. When you claim you were defending yourself, you are effectively admitting the elements of the crime (e. g., that you intentionally shot the guy).

I outline how that works in this post. And it is discussed in more detail in the Lisa Steele articles. As Ms. Steele writes in Part 1:
...In practice, however, the defense attorney has a great deal of work to do in order to convince the jurors that the client’s conduct fell within the common law of self-defense or within applicable state statutes....
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Posted by alsaqr: its absurd to assume that elected prosecutors in my pro-gun state are going prosecute armed self defense cases...
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As fiddletown has correctly opined, you have missed the point--completely.

If the prosecutor has reason to believe that it is a lawful armed self defense case, he will have no reason at all to prosecute.

It is when the preponderance of the evidence does not indicate that the use of deadly force was justified that prosecution will occur.

That's the evidence--the facts that investigators are able to piece together after the fact. Forget the shooter's clean record, his CCW license, and so forth. Consider the facts that can be assembled after the shooting.

The facts may not seem to favor the shooter--but that does not mean that he or she was not justified in using deadly force as a last resort to defend is or her life.

The prosecutor did not see it happen. He or she has to reconstruct the incident based on a few bits and pieces after the fact.

...with the same zeal as prosecutors in some "experts" anti-gun state with its appointed prosecutors.
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I do not understand why so many people bring the 'antigun state" argument into the issue.

Arizona is certainly a "gun friendly" state. That did not stop the state from prosecuting Larry Hickey for what it believed to be the unlawful use of deadly force.

The use of force laws apply equally whether the actor has used a firearm, a crossbow, a Samurai sword, a carving knife, a baseball bat, or a cast iron fry pan.

California, Illinois, and Massachusetts are, by most every standard, "antigun" states. However, the laws, the case law, and for the most part, prosecutorial trends, are not stacked against the citizen who defends himself lawfully in those states, any more than is the case in many gun friendly" jurisdiction.

I do not know what it is that has created so many misconceptions in this area.
 
Kleanbore said:
...California, Illinois, and Massachusetts are, by most every standard, "antigun" states. However, the laws, the case law, and for the most part, prosecutorial trends, are not stacked against the citizen who defends himself lawfully in those states, any more than is the case in many gun friendly" jurisdiction....
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A case in point.

This guy shot and killed a fleeing robber and was given a "pass" in.....Illinois.
 
It should go without saying that if the DA finds justification and the evidence follows what the witnesses and person being investigated claim there will be no charges. If there is obvious tampering, false statements, claims that are physically impossible, then why wouldn't there be a continued in depth investigation and charges filed?
Some of what I am reading seems to claim that prosecutors should let people off simply because they are the good guy even if they criminally killed or shot someone. It would be much easier to follow if we were clear on the fact that none of us are out to commit a crime of violence.

The same 1/2 dozen or so cases seem to always come up and I'm sure its because it drives a point but we loose focus of the fact that there are 100's of self defense shooting a year in this country and all of those citizens are not wasting in jail. The NRA tells us that guns are used as deterrents thousands of times and those numbers don't cover those who walk away and never report.
I guess I don't know what this discussion is trying to point out but it seems driven by lawyers who are practicing on either coast and no doubt have been somewhat jaded by the politics of the region.
 
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X-Rap said:
...The same 1/2 dozen or so cases seem to always come up and I'm sure its because it drives a point...
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The same cases keep coming up because they are readily to hand. And they do illustrate the important point that just because you have used your gun in what you believe to have been justified self defense does not guarantee that you'll just ride off into the sunset lauded as a hero.

X-Rap said:
...there are 100's of self defense shooting a year in this country and all of those citizens are not wasting in jail...
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Yep, but if you use your gun in self defense, you can't know ahead of time if you'll wind up one of them.

X-Rap said:
...I guess I don't know what this discussion is trying to point out but it seems driven by lawyers who are practicing on either coast and no doubt have been somewhat jaded by the politics of the region.
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What balderdash, and I'm getting sick of this nonsense. Bart Roberts, for example, practices in Texas and Oklahoma. Some of the lousy cases we point to come out of Oklahoma, Arizona and Missouri.

The point of this sort of exercise is to urge those of us who keep guns for self defense to understand the law and understand the process and learn to make sound judgements based on reality. If you shoot someone, you are not automatically the good guy because you have your CCW and claim you acted in self defense.

We've been presenting the information. Whether you learn anything is up to you.
 
Fiddletown said,

The point of this sort of exercise is to urge those of us who keep guns for self defense to understand the law and understand the process and learn to make sound judgements based on reality.
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Probably the best advice given ever in S&T
 
Show me the lousy OK case: It ain't Abshire. IMO: The prosecutor in Abshire did the right thing.
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The prosecutor in the Abshire case, correctly judging that the "stand your ground" provision of the law did not apply, believed that Abshire was wrong in going outside. So far so good.

He further contended that Abshire, once brutally attacked, did not have a right to defend himself.

He proceeded under the assumption that he could prove beyond reasonable doubt that Abshire's actions had not been justifiable under the self defense laws of Oklahoma.

He was proved wrong.

That does happen.

When it does, it is a lousy case.

In that case, the prosecutor did prosecute someone who had been engaged in a legitimate self defense case. The jury so decided, under the law.

But to quibble over that one is to miss the point.

One should read the Lisa Steele material, the Korwin book, the linked post on the idea of a "righteous shoot" and understand that the naive belief that a prosecutor will somehow be able to divine and willing to assume that a person who claims self defense and who cannot produce sufficient evidence will not be prosecuted because one may not live in an "antigun state" does not hold water.

Mortablunt's comment nails that one.

"You're asking me to prove that you killed someone who just so happened to be there with you at that particular moment, of all the places in the world, doing of all things, putting you in mortal danger for who knows what reason and your response is an excuse which has been used so many times that I hear it every single day from people who are lying."
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There is no reason that that should be any less the case in Arizona, Colorado, New Mexico, and Texas, than it is in California, Iillnois, or New Jersey.
 
We've been presenting the information. Whether you learn anything is up to you.

There it is.

lpl
 
A few weeks ago I mentioned a man in Logan, WV involved in a shooting outside of WalMart. I don't have a link to the article, maybe someone else does. As I recall on the local news : man was attacked from the rear, choked down and money taken. Robber starts to flee CCW holder on ground shoots and kills attacker. Now that was a "bad" shoot as we know yet I stated before he wouldn't be convicted. He was charged with murder, town protested and he was released. He has yet to be charged and a jury trial is a waste. May not be legal but the people have spoken.
 
"self defense" is an affirmative defense to prosecution and a legal term of art. Meaning, it arises only after a person has been arrested, charged, and now prosecuted for the offenses against another person ranging from assault to murder. It is confession and avoidance, so you are admitting half the prosecutions case of you acted. Basically, self-defense is based on a reasonableness standard of what a reasonable person in the same or similar circumstances would have done? It includes both the subjective and objective test, and evidence may be derived from the circumstances (circumstantial) or from direct testimony from witnesses or yourself or both. You can testify to the limited issue of self-defense, but it is dangerous to do so. If faced with the difficult scenario of defending yourself by shooting another person, it's best to say nothing and "lawyer up" right away. The hard part is over, you defended yourself, a loved one, your property, or some innocent bystander - now the real battle begins to really DEFEND yourself and the best gun you can carry is the best lawyer you can afford.
 
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If faced with the difficult scenario of defending yourself by shooting another person, it's best to say nothing and "lawyer up" right away.
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Disagree. Had a guy here do so and apparently critical evidence was lost/overlooked. His high dollar lawyer got him 8 years in jail as opposed to something longer. IMHO, if he had followed Ayoob's advice, his attorney would have had better cards to play.

You can testify to the limited issue of self-defense, but it is dangerous to do so.
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Not in South Carolina. In fact here it is very advantageous to do so.

Please remember that THR has an international audience. :)
 
I think the focus of Strategy & Tactics is preparation. The aftermath of a shooting is something you can prepare for now. If nothing else the Lisa Steele article is great from a perspective of understanding your own state's self-defense law. Are you standing in the shoes of a third person in defense of others situation? What is your state's take on duty to retreat? How does your state's version of Castle Doctrine work and does it cover someplace besides the immediate dwelling?

If you are going to be carrying around deadly force, you've got to know the laws around it. Just like you need to know traffic laws when driving. Unfortunately, even in gun-friendly states like Texas, I run into people everyday who don't understand those laws. In some cases they think they can use deadly force where they can't. In others they think they can't use deadly force in a situation where it is both legal and probably a wise idea tactics wise as well.

If nothing else, it is worth reading the Lisa Steele article and noting all the places where she states laws may be different and finding out exactly how your state deals with those.
 
That is the best advice of this whole thread and probably what others including myself have been trying to relate, very good and well put.
 
I stand by my advice that in a good shoot when cops arrive and detain, question, arrest you - say nothing without competent legal representation (a lawyer) present; no matter which of the great United States you are in. To advise otherwise could only be seen as malpractice IMO.
 
You can testify to the limited issue of self-defense, but it is dangerous to do so.
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I'm not sure I understand. Do you mean to say here that one should not make any initial statement to the police on the scene, except possibly a statement of self-defense (and even that's dangerous)?

Or that at trial you should not take the stand and testify? Or something else?

It is a given that speaking without your attorney present is dangerous; the real question is whether saying nothing at first is even more dangerous. I suspect that depends some on the individual, and certainly on preparation. I believe that (along with perhaps preventing the evaporation of witnesses or evidence), an initial statement would get recorded in the police report. Would refute any contention that SD was a strategy your lawyer cooked up long after the fact.

As to testifying at trial, I am not a lawyer...but I have been a juror. I would think a key for winning a SD case would be the defendent sitting in open court and saying, "Yes, I shot him, and I'm here to tell you why." Without that statement, the claim of SD defense may feel like a hollow legal trick.

(No offense, lawyers.)
 
One of my attorneys went to various seminars and continuing ed on defending a self defense situation. Him and I have had 2 meetings and he discussed (in detail) what to do and not to do. I have his day/night number(s) in my wallet.

Bottom line IMHO is to be proactive and study. I would rather learn from others mistakes versus my own. Thanks for posting the info....good read.
 
Posted by mljdeckard: I agree that you should say things that will assist the police in gathering evidence and identifying witnesses,...
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Respectfully, the way I would put it, I think it is essential to say anything that will prevent the police from overlooking key evidence and from failing to identify witnesses---unless one's own investigators arrive the scene at the same time as the police.

And to identify the attacker and to identify oneself as the victim.

And no more.

Should the evidence and witnesses disappear, one could be in a world of hurt.

Should the actor try to explain what happened, he or she could be in a world of hurt.
 
Loosedhorse said:
...It is a given that speaking without your attorney present is dangerous; the real question is whether saying nothing at first is even more dangerous. I suspect that depends some on the individual, and certainly on preparation....
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And indeed, especially under stress, it's difficult for many people to control their tongues. It probably is better that someone who has just used a gun in self defense say nothing than say the wrong thing.

But if someone believes he can be mentally prepared to control himself, then he is well advised to say just those very few things that Massad Ayoob and some others recommend (see this post for the details).

As Sam1911 put it here:
Sam1911 said:
....Here we study strategies and tactics, skills and mindset, through which we attempt to elevate our responses above those basic levels attained by "most people" or even "gun-owners" in general. We work, think, and practice to give ourselves a more complete, more competent, and hopefully more universally successful counter-action in the event of a violent confrontation....

...Some people will be exonerated of wrong-doing if they simply shut up and let whatever evidence the police find on the scene (or whatever stories they are told by others) exonerate or condemn them. We practice a more complete, effective, direct, and proactive response to the questions of responding LEOs, calculated to improve the success of our defense....
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Loosedhorse said:
...As to testifying at trial, I am not a lawyer...but I have been a juror. I would think a key for winning a SD case would be the defendent sitting in open court and saying, "Yes, I shot him, and I'm here to tell you why." Without that statement, the claim of SD defense may feel like a hollow legal trick....
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And that is why, as a practical matter, someone who is claiming self defense will need to (1) at some point make a detailed statement; and (2) testify about what happened. As a practical matter, someone claiming self defense will not be able to remain silent indefinitely and will have to tell his story.

If you are claiming self defense, you will need to present evidence sufficient to prima facie establish justification. And the your story will be important evidence.
 
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